Practice Relating to Rule 103. Collective Punishments
Note: For practice concerning the principle of individual criminal responsibility, see Rule 102.
Hague Regulations (1899)
Article 50 of the 1899 Hague Regulations provides: “No general penalty, pecuniary or otherwise, can be inflicted on the population on account of the acts of individuals for which it cannot be regarded as collectively responsible.”
Hague Regulations (1907)
Article 50 of the 1907 Hague Regulations provides: “No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.”
Geneva POW Convention
Article 46, fourth paragraph, of the 1929 Geneva POW Convention provides: “Collective penalties for individual acts are also prohibited.”
Geneva Convention III
Article 26, sixth paragraph, of the 1949 Geneva Convention III states: “Collective disciplinary measures affecting food are prohibited.”
Article 87, third paragraph, of the 1949 Geneva Convention III provides that “[c]ollective punishment for individual acts” is forbidden.
Geneva Convention IV
Article 33, first paragraph, of the 1949 Geneva Convention IV provides: “Collective penalties … are prohibited.”
Additional Protocol I
Article 75(2)(d) of the 1977 Additional Protocol I provides: “The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents: … collective punishments”.
Additional Protocol II
Article 4(2)(b) of the 1977 Additional Protocol II provides: “The following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever: … collective punishments”.
Statute of the Special Court for Sierra Leone
Article 3 of the 2002 Statute of the Special Court for Sierra Leone provides:
The Special Court shall have the power to prosecute persons who committed or ordered the commission of serious violations of article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include:
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(b) Collective punishments.
Kampala Convention
The 2009 Kampala Convention lists prohibited categories of arbitrary displacement, including “displacement used as a collective punishment”.
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Report of the Commission on Responsibility
Based on several documents supplying evidence of outrages committed during the First World War, the 1919 Report of the Commission on Responsibility lists violations of the laws and customs of war which should be subject to criminal prosecution, including the imposition of collective penalties.
UN Declaration on the Protection of Women and Children in Emergency and Armed Conflict
Paragraph 5 of the 1974 UN Declaration on the Protection of Women and Children in Emergency and Armed Conflict provides:
All forms of repression … of women and children, including … collective punishment … committed by belligerents in the course of military operations or in occupied territories, shall be considered criminal.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 4 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 22(2)(a) of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind, states that “collective punishment” is an exceptionally serious war crime and a serious violation of the principles and rules of international law applicable in armed conflict.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.3 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I.
ICTR Statute
Article 4(b) of the 1994 ICTR Statute grants the Tribunal jurisdiction over violations of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II, including collective punishments.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 20(f)(ii) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that “[c]ollective punishments” committed in violation of international humanitarian law applicable in armed conflict not of an international character are war crimes.
UN Secretary-General’s Bulletin
Section 7.2 of the 1999 UN Secretary-General’s Bulletin states:
The following acts against any of the persons mentioned in section 7.1 [persons not, or no longer, taking part in military operations, including civilians, members of armed forces who have laid down their weapons and persons placed hors de combat by reason of sickness, wounds or detention] are prohibited at any time and in any place: … collective punishment.
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Argentina
Argentina’s Law of War Manual (1969) prohibits “collective punishments” of the civilian population.
Argentina’s Law of War Manual (1989) prohibits collective punishments and provides that this is a fundamental guarantee which applies in international and non-international armed conflicts.
Australia
Under Australia’s Defence Force Manual (1994), collective penalties are expressly prohibited as measures for the control of the population of occupied territory.
Australia’s LOAC Manual (2006) states:
The following acts are prohibited at any time and in any place whatsoever:
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• collective punishments; and
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• threats to commit any of the foregoing acts.
Belgium
Belgium’s Law of War Manual (1983) states: “It is prohibited to impose collective punishments [or] to take measures of intimidation or terrorism.”
Benin
Benin’s Military Manual (1995) prohibits collective punishment.
Burkina Faso
Burkina Faso’s Disciplinary Regulations (1994) prohibits subjecting the wounded, sick and shipwrecked, prisoners and civilians to collective punishment.
Cameroon
Cameroon’s Disciplinary Regulations (1975) prohibits subjecting the wounded, sick and shipwrecked, prisoners and civilians to collective punishment.
Cameroon’s Disciplinary Regulations (2007) states: “It is prohibited to soldiers in combat: … to take hostages, to engage in reprisals or collective punishments.”
Canada
Canada’s LOAC Manual (1999) forbids collective punishment against prisoners of war, civilians in general and in occupied territories, whether in international or internal armed conflicts.
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs): “Collective punishment for individual acts, corporal punishment, imprisonment in premises without daylight and any form of torture or cruelty, are forbidden.”
[The 1949 Geneva Convention IV] prohibits taking any measure, which will cause physical suffering to protected persons or will lead to their extermination … The following are expressly prohibited:
…
b. collective penalties and measures of intimidation and terrorism.
2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:
…
d. collective punishments; and
e. threats to commit any of the foregoing acts.
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b. collective punishment;
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g. threats to commit any of the foregoing.
Canada’s Prisoner of War Handling and Detainees Manual (2004), in the section dealing with prisoner-of-war rations and messing, states: “Collective punishments involving restriction of food allowances are not to be imposed”.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police): “Causing harm to life, health or physical or mental well-being, for example through … collective punishments and threats, is prohibited.”
The Central African Republic’s Disciplinary Regulations (2009) states: “During combat, it is also prohibited for servicemen … to use … collective punishment”.
Chad
Chad’s Instructor’s Manual (2006) states that “collective sentences” is a grave breach of the 1949 Geneva Conventions and thus a war crime.
Congo
The Congo’s Disciplinary Regulations (1986) prohibits subjecting the wounded, sick and shipwrecked, prisoners and civilians to collective punishment.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 2 (Instruction of second-year trainee officers):
I.1. Protection of the civilian population
…
Geneva Convention IV prohibits using the civilian population as a shield … Furthermore, “collective penalties and likewise all measures of intimidation or of terrorism” towards the civilian population are prohibited.
Djibouti
Djibouti’s Disciplinary Regulations (1982) states: “It is prohibited for combatants to … impose collective punishment”.
Ecuador
Ecuador’s Naval Manual (1989) states that prisoners of war and interned persons “may not be subjected to collective punishment”.
France
France’s Disciplinary Regulations (1975), as amended, prohibits subjecting the wounded, sick and shipwrecked, prisoners and civilians to collective punishment.
France’s LOAC Manual (2001) provides that collective punishment is a war crime and that one of the three main principles common to IHL and human rights is the principle of security, which guarantees to every human being the right not to be held responsible for an offence he or she did not commit and which prohibits collective punishments.
Germany
Germany’s Soldiers’ Manual (1991) provides for the prohibition of collective punishment against civilians.
Germany’s Military Manual (1992) refers to Article 33 of the 1949 Geneva Convention IV and prohibits “collective penalties” of civilians.
Germany’s IHL Manual (1996) states: “Collective punishments are prohibited.”
Germany’s Soldiers’ Manual (2006) states: “Reprisals against the civilian population are prohibited, likewise taking of hostages, collective penalties, pillage as well as measures of intimidation or terrorization.”
Greece
The Hellenic Territorial Army’s Internal Service Code (1984), as amended, provides: “It is forbidden for members of the armed forces: … To … carry out … collective punishments.”
Israel
Israel’s Manual on the Laws of War (1998) states that “collective punishment” of prisoners of war is absolutely forbidden.
Israel’s Manual on the Rules of Warfare (2006) states: “The disciplinary and punishment rules applicable in the army of the imprisoning country will also apply to the prisoners-of-war. Group punishments … are absolutely forbidden.”
Italy
Italy’s IHL Manual (1991) states that civilian persons in occupied territory have the right not to be subjected to collective punishment.
Mali
Mali’s Army Regulations (1979) prohibits subjecting the wounded, sick and shipwrecked, prisoners and civilians to collective punishments.
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on the 1949 Geneva Convention III, states: “Collective punishment for individual acts is forbidden”.
Morocco
Morocco’s Disciplinary Regulations (1974) prohibits subjecting the wounded, sick and shipwrecked, prisoners and civilians to collective punishments.
Netherlands
The Military Manual (1993) of the Netherlands reproduces the prohibition of collective punishments found in Article 75 of the 1977 Additional Protocol I and Article 4 of the 1977 Additional Protocol II.
The Military Manual (2005) of the Netherlands states that “collective punishments … are forbidden”.
It is expressly prohibited to carry out the following acts against the civilian population or individual civilians, wounded, sick or prisoners:
…
- collective punishments;
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- threatening anyone with the above-mentioned acts or treatment.
New Zealand
New Zealand’s Military Manual (1992), referring to Articles 32–34 of the 1949 Geneva Convention IV, states: “The following are … prohibited: a. the punishment of a protected person for an offence not committed by him personally; b. collective penalties”.
Until and during World War II, Occupying Powers occasionally sought to secure observance of the law of armed conflict by the inhabitants of the occupied territory by the imposition or threat of collective penalties. Such action was contrary to HR Art. 50, and any collective penalties are now expressly forbidden by [the 1949 Geneva Convention IV] Art. 33 and [the 1977 Additional Protocol I] Art. 75 (2)(d).
Although [the 1977 Additional Protocol II] contains no provisions relating to enforcement or punishment of breaches, it does contain a statement of fundamental guarantees prohibiting at any time and anywhere: … collective punishment.
Nicaragua
Nicaragua’s Military Manual (1996) prohibits acts of collective punishment, including the threat to commit such acts.
Peru
Peru’s IHL Manual (2004) states: “collective punishment … [is] prohibited”.
Peru’s IHL and Human Rights Manual (2010), in a section on occupied territories, prohibits “collective punishment”.
Romania
Romania’s Soldiers’ Manual (1991) provides that collective punishments are prohibited.
Russian Federation
The Russian Federation’s Military Manual (1990) refers to the 1949 Geneva Conventions and the 1977 Additional Protocol I and prohibits collective punishment “of war victims”.
The Russian Federation’s Regulations on the Application of IHL (2001) states:
Under any circumstances international humanitarian law ensures humane treatment during an armed conflict, of persons not directly involved in combat operations … In particular, the following shall be prohibited with regard to such persons: … collective punishment … [and] threats to commit any of the above acts.
Senegal
Senegal’s IHL Manual (1999) lists the prohibition of collective punishment among the most basic universal rights to which every individual is entitled.
Spain
Spain’s LOAC Manual (1996) prohibits collective punishments.
Spain’s LOAC Manual (2007) states:
[N]o person who is captured or detained in relation to an armed conflict remains unprotected under the law of armed conflict and is entitled, at all times, to minimum guarantees. [These include] … prohibition of the following acts at any time and in any place, whether committed by civilian or military agents: … collective punishments.
Sweden
Sweden’s IHL Manual (1991) considers that the fundamental guarantees for persons in the power of one party to the conflict as contained in Article 75 of the 1977 Additional Protocol I are a part of customary international law.
Switzerland
Switzerland’s Basic Military Manual (1987) refers to Article 87 of the 1949 Geneva Convention III and states that “collective punishments are prohibited” and that “collective and individual punishments affecting food are prohibited”.
Togo
Togo’s Military Manual (1996) prohibits collective punishment.
Ukraine
Ukraine’s IHL Manual (2004) states that “collective punishment”, or threats of such action, is prohibited in non-international armed conflicts against the following persons:
- persons taking no active part in the hostilities;
- members of armed forces who have laid down their arms;
- those placed hors de combat by sickness, wounds, detention, or any other cause.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states:
The Hague Rules forbid collective punishment, in the form of a general pecuniary or other penalty, of the population for acts of individuals for which the population as a whole cannot be regarded as jointly and severally responsible. It was formerly thought that the prohibition did not exclude reprisals against a locality or community for some act committed by its inhabitants or members who cannot be identified. However, the Civilian Convention, Art. 33 has prohibited collective penalties and has expressly adopted the principle that “no protected person may be punished for an offence he or she has not personally committed”.
The UK LOAC Pamphlet (1981) forbids collective punishments.
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
The following acts are prohibited “at any time and in any place whatsoever”:
…
d. collective punishments;
e. threats to commit any of the foregoing acts.
United States of America
The US Field Manual (1956) reproduces Article 87 of the 1949 Geneva Convention III, Article 33 of the 1949 Geneva Convention IV and Article 50 of the 1907 Hague Regulations.
The US Air Force Pamphlet (1976) prohibits collective punishment imposed on prisoners of war for individual acts.
The US Naval Handbook (1995) states: “Prisoners of war may not be subjected to collective punishment.” The same provision applies to interned persons.
The US Naval Handbook (2007) states: “Prisoners of war may not be subjected to collective punishment.”
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) prohibits collective punishment of civilians, the wounded, sick and shipwrecked, and prisoners of war.
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Afghanistan
Afghanistan’s Law on Juvenile Rehabilitation and Training Centres (2009) states regarding the detention of juveniles: “Punishment. … Collective punishment of the children, [whether] suspected, accused [or] convicted to imprisonment, … is not permitted.”
Australia
Australia’s War Crimes Act (1945) provides that the “imposition of collective punishment” is a war crime.
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime.
Bosnia and Herzegovina
The Federation of Bosnia and Herzegovina’s Criminal Code (1998) provides that the “imposition of collective punishment” is a war crime.
Bosnia and Herzegovina’s Criminal Code (2003) states that, in time of war, armed conflict or occupation, ordering or imposing “collective punishments” against civilians, in violation of international law, constitutes a war crime.
China
China’s Law Governing the Trial of War Criminals (1946) provides that “enforcing collective torture” is a war crime.
Côte d’Ivoire
Under Côte d’Ivoire’s Penal Code (1981), as amended in 1998, in times of war or occupation, organizing, ordering or imposing collective punishments on the civilian population constitutes a “crime against the civilian population”.
Croatia
Croatia’s Criminal Code (1997) provides that the imposition of collective punishment is a war crime.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Code of Military Justice (1972), as amended in 1980, provides that the imposition of collective penalties during war or in an area under siege or during a declared state of emergency is an offence.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Ethiopia
Under Ethiopia’s Penal Code (1957), in time of war, armed conflict or occupation, the imposition of collective punishment on the civilian population is a war crime.
Ethiopia’s Criminal Code (2004) states:
Article 270.- War Crimes against the Civilian Population.
Whoever, in time of war, armed conflict or occupation organizes, orders or engages in, against the civilian population and in violation of the rules of public international law and of international humanitarian conventions:
…
(g) … the imposition of collective punishments …
…
is punishable with rigorous imprisonment from five years to twenty-five years, or, in more serious cases, with life imprisonment or death.
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Articles 26 and 87 of the Geneva Convention III and Article 33 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Article 75(2)(d), as well as any “contravention” of the 1977 Additional Protocol II, including violations of Article 4(2)(b), are punishable offences.
Italy
Italy’s Law of War Decree (1938), as amended in 1992, provides: “No collective sanction, financial or of any kind, can be imposed on the population because of an individual fault.”
Lithuania
Under Lithuania’s Criminal Code (1961), as amended in 1998, the imposition of collective punishments constitutes a war crime.
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions …is liable to imprisonment.
Peru
Peru’s Decree on the Use of Force by the Armed Forces (2010) states:
With respect to the persons mentioned above [i.e. persons not directly participating in hostilities or who have laid down their arms as well as persons placed hors de combat by illness, wounds, detention or any other reason], the following actions are prohibited anytime and anywhere:
…
c. Collective punishments.
…
f. Threats to carry out any of the aforementioned acts.
Romania
Romania’s Law on the Punishment of War Criminals (1945) provides that “criminals of war” are persons who “ordered or executed collective … repression”.
Rwanda
Rwanda’s Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes (2003) provides:
Article: 10
“War crime” shall also mean any of the following acts committed in armed conflicts:
…
3° collective punishments;
…
Article: 11
Anyone who commits one of the war crimes provided for in Article 10 of this law shall be punished by the following penalties:
…
2° imprisonment for ten (10) to twenty (20) years, where he has committed a crime provided for in point 3°, 8°, 11° or 12° of Article 10 of this law.
Serbia
Serbia’s Criminal Code (2005) states that, in time of war, armed conflict or occupation, ordering or committing “collective punishment” against the civilian population, in violation of international law, constitutes a war crime.
Slovenia
Slovenia’s Penal Code (1994) provides that “the imposition of collective punishments” is a war crime.
Spain
Under Spain’s Penal Code (1995), “the imposition of collective punishments” is an offence.
Spain’s Penal Code (1995), as amended in 2003, states:
Anyone who [commits any of the following acts] during armed conflict shall be punished with three to seven years’ imprisonment:
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3. … [I]mposing collective punishments for the acts of individuals.
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
26.2. Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict.
26.3. The following are war crimes:
…
37. Inflicting collective punishments.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Penal Code (1976), as amended in 2001, provides that “the imposition of collective penalties” is a war crime.
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Bosnia and Herzegovina
In 2007, in the Lučić case, the Panel of the Court of Bosnia and Herzegovina stated:
[A] guarantee provided by Article 78 of the [1949] Fourth Geneva Convention and Article 4(2)(b) of the [1977] Additional Protocol II, consists in the prohibition of internment as a collective punishment, meaning that this internment can only be ordered on a case-by-case basis, and not as a collective measure.
Colombia
In 1995, Colombia’s Constitutional Court held that the prohibitions contained in Article 4(2) of the 1977 Additional Protocol II practically reproduced specific constitutional provisions.
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
Taking into account … the development of customary international humanitarian law applicable in internal armed conflicts, the Constitutional Court notes that the fundamental guarantees stemming from the principle of humanity, some of which have attained ius cogens status, … [include] the prohibition of collective punishment. [footnote in original omitted]
Italy
In its judgment in the Priebke case in 1997, the Military Tribunal of Rome found that the killing of 335 civilians at the Ardeatine caves ordered by the accused as a reprisal for the killing of German officers in Rome by partisans was a war crime. The Court held that the “multiple murder of civilians in occupied territory had been perpetrated beyond the limits set by customary laws on reprisals and by Article 50 of the Hague Regulations on collective punishments”.
United States of America
In the Calley case in 1973, a US army officer was convicted of murder for killing South Vietnamese civilians. The US Army Court of Military Review dismissed the argument that the acts were lawful reprisals for illegal acts of the enemy and held: “Slaughtering many for the presumed delicts of a few is not a lawful response to the delicts … Reprisal by summary execution of the helpless is forbidden in the laws of land warfare.”
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Cuba
In 2009, in a statement before the Fourth Committee of the UN General Assembly on the report of the special committee to investigate Israeli practices affecting the human rights of the Palestinian people and other Arabs of the occupied territories, the representative of Cuba stated:
Cuba expresses its strong concern at the constant deterioration of the situation in the Occupied Palestinian Territory, including East Jerusalem, owing … to … illegal policies and practices, like the inhumane and destructive measures of collective punishment of the Palestinian civilian population, which violate the rights of the Palestinian people and worsen their socio-economic condition, resulting in a dire humanitarian crisis.
In 2010, in a statement to the UN General Assembly on the situation in the Middle East, the deputy permanent representative of Cuba stated:
Cuba reiterates its great concern at the constant deterioration of the situation in the Occupied Palestinian Territory, including East Jerusalem, owing … [inter alia] to … illegal policies and practices, like the inhumane and destructive measures of collective punishment of the Palestinian civilian population, including the blockade of Gaza.
We reiterate the call on the international community to demand that the Israeli authorities immediately end the illegal, cruel and genocidal blockade against the Palestinian people in the Gaza Strip … [Israel] … must … comply with the legal obligations arising from the [1949] Fourth Geneva Convention and relevant resolutions of the United Nations.
Denmark
In 2006, in a report on the detention and transfer of persons in Afghanistan in 2002, Denmark’s Ministry of Defence stated:
International humanitarian law contains in Additional Protocol I to the Geneva Conventions a series of basic fundamental guarantees which apply to any person in a conflicting party’s custody. The persons to whom it applies, for example people who do not have the status of prisoners of war, must always be treated humanly and guaranteed right to personal integrity, honour, belief and religion. The following acts, which involve violence against persons life, health or physical or mental well being, are without exception prohibited, this is regardless of whether they relate to civilian or military officials:
…
- Collective punishment.
Ireland
In 2008, Ireland’s Minister for Foreign Affairs, in a written response to a question on foreign conflicts, stated:
The Government has consistently called for an end to the isolation of the people of Gaza, in particular through the reopening of crossing points for the movement of people and goods. Gaza has been isolated, in effect, since the Hamas takeover in June 2007, even during the ceasefire between Israeli forces and Hamas that was broadly respected from 19 June 2008 until 4 November 2008. Since J
une 2007, Israel has maintained the closure of all border crossings for the movement of people, with limited exceptions. … The Government agrees with those who say that the effective isolation of Gaza constitutes collective punishment and is illegal under international humanitarian law.
In 2008, Ireland’s Minister for Foreign Affairs, in a written response to a question on human rights issues, stated:
The Government remain seriously concerned about the humanitarian situation in Gaza, which has effectively been isolated since the Hamas takeover in June 2007, even during a ceasefire between Israeli forces and Hamas which was broadly respected from 19 June 2008 until 4 November 2008. The Government have consistently called for an end to the isolation of the people of Gaza, in particular through the re-opening of crossing points for the movement of people and goods.
…
The Government agree with those who state that the effective isolation of Gaza constitutes collective punishment and is illegal under international humanitarian law.
…
Ireland also raised the situation in Gaza during the Universal Periodic Review of Israel at the UN Human Rights Council in Geneva on 4 December, calling on Israel to respect its obligations under international human rights instruments and international humanitarian law.
Israel
In 2008, in a briefing to the Diplomatic Corps on Israel’s operations in Gaza, Israel’s Vice Prime Minister and Minister of Foreign Affairs stated:
I think that Israel is the only state in the world in which its Minister of Defense has today, during a time of almost war, met with the Attorney General, the Minister of Justice, and Foreign Ministry experts on international law, in order to speak about and understand the terms of proportionality in accordance with how the IDF [Israel Defense Forces] works and will continue to work on the ground. So, basically, it is not something that can be judged. I hope that the international community knows that we are trying to avoid civilian casualties, and that what is called “collective punishment” goes against our values and our system.
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated: “Collective punishment is forbidden”.
Jordan
The Report on the Practice of Jordan states that Article 75 of the 1977 Additional Protocol I embodies customary law.
Malaysia
In 2012, during the consideration of the status of the 1977 Additional Protocols by the Sixth Committee of the UN General Assembly, a statement of the delegation of Malaysia was summarized by the Committee in its records as follows:
[The delegate of Malaysia] said that … Israel, as the [O]ccupying Power in the Occupied Palestinian Territory, had failed to ensure that the people of Palestine lived a life free of misery, by blatantly disregarding international law, including the [1949] Geneva Conventions … Its list of violations included … collective punishment through its devastating blockade in Gaza.
Norway
In 2006, during a debate in the UN Security Council on the situation in Gaza, the Permanent Representative of Norway stated: “Norway is also deeply concerned about the humanitarian situation in Gaza caused by Israeli attacks on vital infrastructure. Such collective punishment is unacceptable.”
In 2006, during a debate in the UN Security Council on the situation in Lebanon and Gaza, the Norwegian Minister for Foreign Affairs stated: “Israel’s attacks on vital infrastructure constitute a form of collective punishment which is unacceptable.”
Saudi Arabia
In its written statement submitted to the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004, Saudi Arabia stated:
[T]he Separation Wall constitutes a collective punishment that affects all Palestinians and makes no distinction between the civilian population at large and those that commit hostile acts, and thus clearly violates both the 1907 Hague Regulations and the Fourth Geneva Convention of 1949.
Article 33 of the Fourth Geneva Convention states:
“No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.”
Article 50 of the 1907 Hague Regulations likewise states:
“No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.”
Somalia
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include Article 4 providing guarantees to persons taking no active part in hostilities … due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions.
Sweden
In 2007, Sweden’s Ministers for Foreign Affairs and for International Development Co-operation stated with regard to the situation in Gaza:
Israel is entitled to defend itself against being fired upon, but to interrupt electricity and fuel supplies to the civilian population in Gaza constitutes collective punishment and is not compatible with international law.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed:
We support the principle that [all persons who are in the power of a party to a conflict and who do not benefit from more favorable treatment under the Conventions] not be subjected to … collective punishments.
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:
Iraqi policy provided for the collective punishment of the family of any individual who served in or was suspected of assisting the Kuwaiti resistance. This punishment routinely took the form of destruction of the family home and execution of all family members. Collective punishment is prohibited expressly by Article 33 [of the 1949 Geneva Convention IV].
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].”
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UN General Assembly
In a resolution adopted in 1974 on the protection of women and children in emergency and armed conflict, the UN General Assembly stated that “all forms of … collective punishment … shall be considered criminal”.
In a resolution adopted in 2003 on Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, the UN General Assembly expressed concern about “the continuing systematic violation of the human rights of the Palestinian people by Israel, the occupying Power, including the use of collective punishment”.
In a resolution adopted in 2004 on Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, the UN General Assembly expressed concern about “the continuing systematic violation of the human rights of the Palestinian people by Israel, the occupying Power, including that arising from … the use of collective punishment”.
In a resolution adopted in 2005 on Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, the UN General Assembly expressed concern about “the continuing systematic violation of the human rights of the Palestinian people by Israel, the occupying Power, including that arising from … the use of collective punishment”.
In a resolution adopted in 2006 on Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, the UN General Assembly expressed grave concern about “the continuing systematic violation of the human rights of the Palestinian people by Israel, the occupying Power, including that arising from … the use of collective punishment”.
In a resolution adopted in 2007 on Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, the UN General Assembly expressed grave concern about “the continuing systematic violation of the human rights of the Palestinian people by Israel, the occupying Power, including that arising from … the use of collective punishment”.
UN Commission on Human Rights
In a resolution adopted in 1993 on the occupied Arab territories, the UN Commission on Human Rights condemned “the policies and practices of Israel … and, in particular, … collective punishment”.
In a resolution adopted in 1998, the UN Commission on Human Rights:
Calls upon Israel to cease immediately its policy of enforcing collective punishments, such as the demolition of houses and closure of the Palestinian territory, measures which constitute flagrant violations of international law and international humanitarian law, endanger the lives of the Palestinians and also constitute a major obstacle in the way of peace.
In a resolution adopted in 2003 on the question of the violation of human rights in the occupied Arab territories, including Palestine, the UN Commission on Human Rights:
Gravely concerned at the continued deterioration of the situation in the occupied Palestinian territory and at the gross violations of human rights and international humanitarian law, in particular … collective punishments,
…
12. Expresses its deep concern again at the military siege imposed on the Palestinian territory and the isolation of Palestinian towns and villages from each other through the establishment of military roadblocks that are used as a trap to kill Palestinians, which contribute, together with other factors, to the acts of violence that have been prevailing in the region for two and a half years, calls upon the Government of Israel to immediately put an end to this practice and immediately lift its military siege of Palestinian towns and villages, and reaffirms that these collective punishments are prohibited under international law and constitute a grave violation of the provisions of the Fourth Geneva Convention and Protocol I Additional to the Geneva Conventions.
In a resolution adopted in 2004 on human rights in the occupied Arab territories, including Palestine, the UN Commission on Human Rights:
Taking into consideration the provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949 (Fourth Geneva Convention), the provisions of Additional Protocol I thereto of 1977 and the Hague Convention IV, of 18 October 1907, and Annexed Regulations respecting the Laws and Customs of War on Land,
Recalling resolutions of the Security Council, the General Assembly and the Commission on Human Rights relating to the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem, since the 5 June 1967 war,
Reaffirming the applicability of the Fourth Geneva Convention to the Palestinian territories occupied since the June 1967 war, including East Jerusalem,
…
Gravely concerned at the continued deterioration of the situation in the Occupied Palestinian Territory and at the gross violations of human rights and international humanitarian law, in particular … collective punishments …
…
12. Also strongly condemns acts that consist of imposing collective punishments, military siege of Palestinian territories, isolating Palestinian towns and villages from each other by military roadblocks used as a trap to kill Palestinians, demolishing houses and levelling agricultural lands, as these practices contribute, together with other factors, to the acts of violence that have prevailed in the region for over three and a half years, and calls upon the Government of Israel immediately to put an end to these practices and to lift its military siege of Palestinian towns and villages and its military roadblocks, and affirms anew that such collective punishments are prohibited under international law, as they constitute grave violations of the provisions of the Fourth Geneva Convention and Additional Protocol I thereto, and are also war crimes;
…
15. Affirms anew that the demolitions carried out by the Israeli occupying forces of at least 30,000 Palestinian houses, facilities and property constitute grave violations of articles 33 and 53 of the Fourth Geneva Convention and that acts of levelling farmlands, uprooting trees and destroying what is left of the Palestinian infrastructure constitute a form of collective punishment to which Palestinians are subjected, grave violations of the provisions of international humanitarian law and war crimes according to international law.
In a resolution adopted in 2005 on Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, the UN Commission on Human Rights:
Recalling the applicability of the Geneva Convention relative to the Protection of Civil Persons in Time of War, of 12 August 1949, to the Occupied Palestinian Territory, including East Jerusalem, and the relevant resolutions of the Security Council and the Commission on Human Rights,
…
Asserting that the punitive measures imposed by Israel, the occupying Power, on the Palestinian civil population, including collective punishment, border closures and severe restrictions on the movement of people and goods, arbitrary arrests and detentions, destruction of homes and vital infrastructure, including religious, educational, cultural and historical sites, led to a steep deterioration in the socio-economic conditions, perpetuating a dire humanitarian crisis throughout the Occupied Palestinian Territory, including East Jerusalem, and affirming that these punitive measures violate the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights,
…
1. Reiterates that all actions and punitive measures taken by Israel, the occupying Power, in the Occupied Palestinian Territory, including East Jerusalem, in violation of the relevant provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and contrary to the relevant resolutions of the Security Council, are illegal and have no validity, and thereby demands that Israel, the occupying Power, comply fully with its provisions and cease immediately all measures and actions taken in violation and in breach of the Convention, including extrajudicial executions.
UN Human Rights Council
In a resolution adopted in 2006 on the human rights situation in the Occupied Palestinian Territory, the UN Human Rights Council:
Affirming the applicability of the Geneva Convention relative to the Protection of Civil Persons in Time of War, of 12 August 1949, to the Occupied Palestinian Territory, including East Jerusalem, and to other occupied Arab territories,
…
2. Demands that Israel, the occupying Power, end its military operations in the Occupied Palestinian Territory, abide scrupulously by the provisions of international humanitarian law and human rights law, and refrain from imposing collective punishment on Palestinian civilians.
In a resolution adopted in 2006 on human rights violations emanating from Israeli military incursions in the Occupied Palestinian Territory, including the recent one in northern Gaza and the assault on Beit Hanoun, the UN Human Rights Council recognized that “the Israeli military incursions in the Occupied Palestinian Territory, including the recent incursion in northern Gaza and the assault on Beit Hanoun, constitute a collective punishment of the civilians therein”.
UN Sub-Commission on Human Rights
In two resolutions adopted in 1988 and 1989 on the situation in the Palestinian and other Arab territories occupied by Israel, the UN Sub-Commission on Human Rights, after reaffirming that the 1949 Geneva Convention IV applied to the situation, considered that “collective punishment … amounted to a war crime under international law”.
UN Secretary-General
In 2000, in his report on the establishment of a Special Court for Sierra Leone, the UN Secretary-General stated:
Violations of common article 3 of the Geneva Conventions and of Article 4 of Additional Protocol II thereto committed in an armed conflict not of an international character have long been considered customary international law.
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No data.
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International Conference of the Red Cross and Red Crescent (1999)
The Plan of Action for the years 2000–2003 adopted in 1999 by the 27th International Conference of the Red Cross and Red Crescent requested that all parties to an armed conflict take effective measures to ensure that “strict orders are given to prevent all serious violations of international humanitarian law, including … collective punishment … and threats to carry out such actions”.
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International Criminal Tribunal for the former Yugoslavia
In its judgment in the Mucić case in 1998, the ICTY Trial Chamber addressed the question of the legality of the confinement of civilians. It referred to Article 78 of the 1949 Geneva Convention IV and ruled that “internment and assigned residence, whether in the occupying power’s national territory or in the occupied territory, are exceptional measures to be taken only after careful consideration of each individual case. Such measures are never to be taken on a collective basis.”
Special Court for Sierra Leone
In the Bockarie case before the SCSL in 2003, the accused, a senior member of the Revolutionary United Front (RUF), Junta and Armed Forces Revolutionary Council (AFRC)/RUF forces, was charged with:
Collective Punishments, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.b. of the [2002 Statute of the Special Court for Sierra Leone].
[emphasis in original]
Members of the AFRC/RUF subordinate to and/or acting in concert with [the accused] committed the crimes set forth … in paragraphs 35 through 60 and charged in Counts 3 through 13 [of the indictment], as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population. The AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufficient support to the AFRC/RUF.
In the Koroma case before the SCSL in 2003, the accused, the leader of the Armed Forces Revolutionary Council (AFRC), a senior leader of the AFRC/Revolutionary United Front (RUF), a senior member of the Junta regime, and exercising the powers of the President of the Republic of Sierra Leone from May 1997 to February 1998, was charged with
Collective Punishments, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.b. of the [2002 Statute of the Special Court for Sierra Leone]. [emphasis in original]
Members of the AFRC/RUF subordinate to and/or acting in concert with [the accused] committed the crimes set forth … in paragraphs 33 through 58 and charged in Counts 3 through 13 [of the indictment], as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population. The AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufficient support to the AFRC/RUF.
In the Sankoh case before the SCSL in 2003, the accused, the leader of the Revolutionary United Front (RUF), a senior leader in the Armed Forces Revolutionary Council (AFRC)/RUF, and a senior member of the Junta regime, was charged with:
Collective Punishments, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.b. of the [2002 Statute of the Special Court for Sierra Leone]. [emphasis in original]
Members of the AFRC/RUF subordinate to and/or acting in concert with [the accused] committed the crimes set forth … in paragraphs 36 through 61 and charged in Counts 3 through 13 [of the indictment], as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population. The AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufficient support to the AFRC/RUF.
In the Fofana and Kondewa case before the SCSL in 2004, the accused, senior members of the Civil Defence Forces (CDF), were charged with collective punishments as a violation of common Article 3 of the 1949 Geneva Conventions and of the 1977 Additional Protocol II, punishable under Article 3(b) of the 2002 Statute of the Special Court for Sierra Leone.
176. The Indictment under Count 7 charges the Accused with the offence of collective punishments as a serious violation of Common Article 3 and of Additional Protocol II pursuant to Article 3(b) of the [2002 Statute of the Special Court for Sierra Leone]. This Count relates to the Accused’s alleged responsibility for the commission by the CDF, largely Kamajors, of the crimes charged in Counts 1 though 5 in order to punish the civilian population for their support to, or failure to actively resist, the combined RUF/AFRC forces.
177. The prohibition against collective punishments in Article 3(b) of the Statute derives from Article 4(2)(b) of Additional Protocol II, which is in turn based on the first paragraph of Article 33 of Geneva Convention IV.
178. The prohibition on collective punishments has been included in conventions on international humanitarian law since 1899 and was relied on by the ICTY Trial Chamber in Martic to find that the prohibition on reprisals is also part of customary international law. In light of the above, the Chamber finds that there is individual criminal responsibility for the offence of collective punishments [in] customary international law.
179. The Chamber notes that the prohibition against collective punishment is identified broadly as one of the fundamental guarantees of humane treatment in Article 4 of Additional Protocol II. The Chamber finds that this prohibition is to be understood as encompassing not only penal sanctions but also any other kind of sanction that is imposed on persons collectively.
180. Based on Article 4 of Additional Protocol II to the Geneva Conventions and Article 33 of the Fourth Geneva Convention, the Chamber is of the view that the constitutive elements of the crime of collective punishments under Article 3(b) of the Statute are:
(i) A punishment imposed collectively upon persons for omissions or acts that they have not committed; and
(ii) The Accused intended to punish collectively persons for these omissions or acts or acted in the reasonable knowledge that this would likely occur.
181. As noted above, the term punishment in the first element is meant to be understood in its broadest sense and refers to all types of punishments. It does not refer only to punishments imposed under penal law.
[T]his Chamber takes the view that the prohibition of collective punishments in international humanitarian law is based on one of the most fundamental principles of domestic criminal law that is reflected in national systems around the world: the principle of individual responsibility. The principle of individual responsibility requires that, whether an accused be tried singly or jointly, a determination must be made as to the penal responsibility and appropriate punishment of each individual on trial.
In its judgment in 2008, the Appeals Chamber set out the elements of the crime of collective punishment under Article 3.b of the 2002 Statute of the Special Court for Sierra Leone, stating:
221. … [T]he Appeals Chamber … sets forth the following elements for the crime of collective punishments under Article 3.b. of the [2002] Statute [of the Special Court for Sierra Leone] as stated by the Trial Chamber:
(i) A punishment imposed collectively upon persons for omissions or acts that they have not committed; and
(ii) The Accused intended to punish collectively persons for these omissions or acts or acted in the reasonable knowledge that this would likely occur.
222. Article 3.b. of the Statute is based on Article 33 of the [1949] Fourth Geneva Convention and Article 4(2)(b) of [the 1977] Additional Protocol II to the Geneva Conventions, both of which prohibit collective punishments against protected persons. The prohibition of collective punishments embodies an elementary principle of humanity that penal liability is personal in nature. Restrictive interpretations of collective punishments must be avoided because the prohibition of this crime is one of the fundamental guarantees of humane treatment. The prohibition on collective punishments must be understood in its broadest sense so as to include not only penalties imposed during normal judicial processes, such as sentences rendered after due process of law, but also any other kind of sanction such as a fine, confinement or a loss of property or rights.
223. The Appeals Chamber emphasises that a “punishment” for the purposes of the crime of collective punishments is an indiscriminate punishment imposed collectively on persons for omissions or acts for which some or none of them may or may not have been responsible. As such, a “punishment” is distinct from the targeting of protected persons as objects of attack. The targeting of protected persons as objects of war crimes and crimes against humanity may not necessarily be predicated upon a perceived transgression by such persons and therefore does not constitute collective punishments. Thus, the mens rea element of collective punishments represents the critical difference between this crime and the act of targeting. While targeting takes place on account of who the victims are, or are perceived to be, the crime of collective punishments occurs in response to the acts or omissions of protected persons, whether real or perceived. The targeting of protected persons who are residents of a particular village, for instance, is therefore distinct from the collective punishment of protected persons in a given village who are perceived to have committed a particular act, such as providing rebel forces with shelter.
224. The Appeals Chamber finds that the correct definition of collective punishments is:
i) the indiscriminate punishment imposed collectively on persons for omissions or acts for which some or none of them may or may not have been responsible;
ii) the specific intent of the perpetrator to punish collectively.
[footnotes in original omitted]
In the Brima case before the SCSL in 2005, the three accused, all former non-commissioned officers in the Sierra Leone Army who became senior members of the Armed Forces Revolutionary Council (AFRC) that seized power from the elected Government of the Republic of Sierra Leone in May 1997, were charged, inter alia, with:
Collective punishments, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITONAL PROTOCOL II, punishable under Article 3.b. of the [2002 Statute of the Special Court for Sierra Leone]. [emphasis in original]
These attacks were carried out primarily to terrorize the civilian population, but also were used to punish the population for failing to provide sufficient support to the AFRC/RUF [Revolutionary United Front], or for allegedly providing support to the Kabbah government or to pro-government forces. The attacks included unlawful killings, physical and sexual violence against civilian men, women and children, abductions and looting and destruction of civilian property.
673. Article 3(b) of the [2002 Statute of the Special Court for Sierra Leone], which is based on Article 4(2)(b) of Additional Protocol II, prohibits collective punishments. The notion of “collective punishments” goes back to Article 50 of the 1899 Hague Regulations, according to which “[n]o general penalty, pecuniary or otherwise, can be inflicted on the population on account of the acts of individuals for which it cannot be regarded as collectively responsible.” This prohibition was later incorporated in Article 33(1) of Geneva Convention IV, Article 75(2)(d) of Additional Protocol I and Article 4(2)(b) of Additional Protocol II. It is now firmly enshrined in a variety of international documents and in domestic military legislations.
674. Upon the inception of the Special Court, the United Nations Secretary General (“Secretary General”) declared that “[v]iolations of common Article 3 of the Geneva Conventions and of Article 4 of Additional Protocol II thereto committed in an armed conflict not of an international character have long been considered customary international law, and in particular since the establishment of the two International Tribunals, have been recognised as customarily entailing the individual criminal responsibility of the accused.”
675. In light of the foregoing, the Trial Chamber finds that at the time relevant to the Indictment, customary international law imposed individual criminal liability for the crime of collective punishments, as a violation of Common Article 3 and of Additional Protocol II.
676. In addition to the chapeau requirements of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II pursuant to Article 3 of the [2002 Statute of the Special Court for Sierra Leone], the Trial Chamber adopts the following elements of the crime of collective punishments:
1. A punishment imposed indiscriminately and collectively upon persons for acts that they have not committed; and
2. The intent on the part of the perpetrator to indiscriminately and collectively punish the persons for acts which form the subject of the punishment.
677. In respect of the first element, The Kanu Defence submits that the Prosecution is obliged to lead evidence that the punishment was imposed for acts which the victims did not in actual fact commit. In contrast, the Prosecution argues that “[c]ivilian victims were punished arbitrarily by the AFRC because part of the population was, in the AFRC’s view, supposedly failing to support them” and that “the punishments inflicted in the present instance are equally unlawful when committed against civilians who might have indeed resisted against the AFRC/RUF.”
678. The prohibition of collective punishments in international humanitarian law is based on one of the most basic tenets of criminal law, the principle of individual responsibility. This principle affirms that responsibility is personal in nature and that no one may be punished for an act he or she has not personally committed.
679. Article 3 of the Statute is a reproduction of Article 4(2) of Additional Protocol II (which includes “collective punishments” – Article 4(2)(b) – among its fundamental guarantees). Article 4(2)(b) of Additional Protocol II is based on Article 33 of the Fourth Geneva Convention, which provides that: “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.” Thus punishments imposed upon protected persons who are not individually responsible for the act which forms the object of the punishment are absolutely prohibited.
680. The first element mentioned above concerns punishments which are not based on individual responsibility but which are inflicted upon persons by wrongfully ascribing collective guilt to them. Such punishments are imposed upon persons for acts which they may or may not have committed. In other words, the punishments are imposed indiscriminately without establishing individual responsibility through some semblance of due process and without any real attempt to identify the perpetrators, if any. It is in this context that the first element is understood to mean: “A punishment imposed upon protected persons for acts that they have not committed.” The Trial Chamber therefore rejects the submission of the Kanu Defence that the Prosecution is obliged to prove that the victims of the punishment did not actually commit the acts for which they were punished.
681. The Trial Chamber further notes that this crime covers an extensive range of possible “punishments”. The ICRC Commentary of Article 75.2(d) of Additional Protocol I advocates an extensive interpretation of the crime of collective punishments, to include
not only penalties imposed in the normal judicial process, but also any other kind of sanction (such as confiscation of property) […]. [I]t is based on the intention to give the rule the widest possible scope, and to avoid any risk of a restrictive interpretation.
In the Sesay case before the SCSL in 2006, the accused Sesay and Kallon, senior commanders in the Revolutionary United Front (RUF), Junta and Armed Forces Revolutionary Council (AFRC)/RUF forces, and the accused Gbao, senior commander in the RUF and AFRC/RUF forces, were charged, inter alia, with:
Collective Punishments, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.b. of the [2002 Statute of the Special Court for Sierra Leone]. [emphasis in original]
… the AFRC/RUF also committed … crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufficient support to the AFRC/RUF.
In its judgment in the case in 2009, the Trial Chamber set out the elements of the offence of collective punishments, stating:
123. The Chamber recalls that the prohibition against collective punishments in Article 3(b) of the [2002] Statute [of the Special Court for Sierra Leone] is derived from Article 4(2)(b) of [the 1977] Additional Protocol II, which is in turn based on the first paragraph of Article 33 of the [1949] Fourth Geneva Convention.
124. The Appeals Chamber has held that:
The prohibition of collective punishments embodies an elementary principle of humanity that penal liability is personal in nature. Restrictive interpretations of collective punishments must be avoided because the prohibition of this crime is one of the fundamental guarantees of humane treatment. The prohibition on collective punishments must be understood in its broadest sense so as to include not only penalties imposed during normal judicial processes, such as sentences rendered after due process of law, but also any other kind of sanction such as a fine, confinement or a loss of property or rights. [SCSL, Fofana and Kondewa case, Judgement on Appeal, § 222]
125. The Chamber observes that the prohibition on collective punishments has been included in conventions on international humanitarian law since 1899 and was relied on by the ICTY Trial Chamber in Martic to find that the prohibition on reprisals is also part of customary international law. In light of the above, the Chamber is of the opinion that collective punishments are prohibited at customary international law and entail individual criminal responsibility.
126. The Appeals Chamber has clarified that the correct definition of collective punishments is:
(i) The indiscriminate punishment imposed collectively on persons for omissions or acts for which some or none of them may or may not have been responsible; and
(ii) The Accused specifically intended to punish collectively.
127. The Appeals Chamber has emphasised that the mens rea element of collective punishments, that is the specific intent to punish collectively, is the critical difference between the crime of collective punishments and the targeting of protected persons or objects. Victims of war crimes or crimes against humanity may be targeted because of who they are perceived to be, but victims of collective punishments are targeted because of something they are perceived to have done. [footnotes in original omitted]
Human Rights Committee
In its General Comment on Article 4 of the 1966 International Covenant on Civil and Political Rights in 2001, the Human Rights Committee held:
States parties may in no circumstances invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance … by imposing collective punishments.
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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “Collective punishments are prohibited.”
In a working paper submitted in 1997 to the Preparatory Committee for the Establishment of an International Criminal Court, the ICRC proposed that the following war crime, when committed in an international armed conflict, be subject to the jurisdiction of the Court: collective punishment. Collective punishments, as serious violations of IHL in non-international conflicts, were also listed as war crimes.
In a communication to the press issued in 2000 in connection with the hostilities in the Near East, the ICRC recalled that “restrictions on movements by means of curfews or the sealing-off of areas may in no circumstances amount to collective penalties”.
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Turku Declaration of Minimum Humanitarian Standards
The Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights of Åbo Akademi University in Turku/Åbo, Finland in 1990, provides a list of the minimum judicial guarantees, including that “collective punishments against persons and their property” shall remain prohibited.